Case:- OWP No. 586/2005 v. State of J&K through Financial Commissioner, Labour & Employment, Deptt., Civil Secretariat

(4) An order of the appropriate Government granting or refusing to grant permission shall, subject to the provisions of sub-section (5), be final and binding on all the parties and shall remain in force for one year from the date of such order. (5) The appropriate Government may, either on its own motion or on the application made by the employer or any workman, review its order granting or refusing to grant permission under sub-section (2) or refer the matter to a Tribunal for adjudication: Provided that where a reference has been made to a Tribunal under this sub-section, it shall pass an award within a period of thirty days from the date of such reference. (6) Where no application for permission under sub- section (1) is made within the period specified therein, or where the permission for closure has been refused, the closure of the undertaking shall be deemed to be illegal from the date of closure and the workmen shall be entitled to all the benefits under any law for the time being in force as if the undertaking had not been closed down. section, (7) Notwithstanding anything contained in the foregoing provisions the appropriate Government may, if it is satisfied that owing to such exceptional circumstances as accident undertaking or death of the employer or the like it is necessary so to do, by order, direct that the provisions of sub-section (1) shall not apply in relation to such undertaking for such period as may be specified in the order. (8) Where an undertaking is permitted to be closed down under sub-section (2) or where permission for closure is deemed to be granted under sub-section (3), every workman who is employed in that undertaking immediately before the date of application for permission under this section, shall be entitled to receive compensation which shall be equivalent to fifteen days’ average pay for every completed year 5 OWP No. 586/2005 of continuous service or any part thereof in excess of six months.”

10. Further, section 25-N of the Act of 1947 is also reproduced as being related to the adjudication of the matter. “25N. Conditions precedent to retrenchment of workmen.— (1) No workman employed in any industrial establishment to which this Chapter applies, who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until,— (a) the workman has been given three months’ notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice; and (b) the prior permission of the appropriate Government or such authority as may be specified by that Government by notification in the Official Gazette (hereafter in this section referred to as the specified authority) has been obtained on an application made in this behalf. (2) An application for permission under sub-section (1) shall be made by the employer in the prescribed manner stating clearly the reasons for the intended retrenchment and a copy of such application shall also be served simultaneously on the workmen concerned in the prescribed manner. (3) Where an application for permission under sub- section (1) has been made, the appropriate Government or the specified authority, after making such enquiry as it thinks fit and after giving a reasonable opportunity of being heard to the employer, the workmen concerned and the persons interested in such retrenchment, may, having regard to the genuineness and adequacy of employer, the interests of the workmen and all other relevant factors, by order and for reasons to be recorded in writing, grant or refuse to grant such permission and a copy of such order shall be communicated to the employer and the workmen. the reasons stated by (4) Where an application for permission has been made under sub-section (1) and the appropriate Government or the specified authority does not 6 OWP No. 586/2005 communicate the order granting or refusing to grant permission to the employer within a period of sixty days from the date on which the permission is made, such application applied for shall be deemed to have been granted on the expiration of the said period of sixty days. (5) An order of the appropriate Government or the specified authority granting or refusing to grant permission shall, subject to the provisions of sub-section (6), be final and binding on all the parties concerned and shall remain in force for one year from the date of such order. (6) The appropriate Government or the specified authority may, either on its own motion or on the application made by the employer or any workman, review its order granting or refusing to grant permission under sub-section (3) or refer the matter or, as the case may be, cause it to be referred, to a Tribunal for adjudication: Provided that where a reference has been made to a Tribunal under this sub-section, it shall pass an award within a period of thirty days from the date of such reference. (7) Where no application for permission under sub- section (1) is made, or where the permission for any retrenchment has been refused, such retrenchment shall be deemed to be illegal from the date on which the notice of retrenchment was given to the workman and the workman shall be entitled to all the benefits under any law for the time being in force as if no notice had been given to him. (8) Notwithstanding anything contained this section, in the foregoing provisions of appropriate Government may, if it is satisfied that owing to such exceptional circumstances as accident in the establishment or death of the employer or the like, it is necessary so to do, by order, direct, that the provisions of sub- section to such (1) shall not apply establishment for such period as may be specified in the order. in relation (9) Where permission for retrenchment has been granted under sub-section (3) or where permission for retrenchment is deemed to be granted under sub-section (4), every workman that establishment immediately before the date of application for permission under this section shall be entitled to receive, at time of retrenchment, compensation which shall be equivalent to fifteen days’ average pay for every completed is employed 7 OWP No. 586/2005 year of continuous service or any part thereof in excess of six months.”

11. There is no dispute to the fact that the petitioner applied for the permission for closing down its sewing machine unit run in Jammu (J&K) and for effecting retrenchment of 183 workmen by submission of an application/letter no. JS/AD/CL/528 dated 28.06.2005. By reference to this date of submission of application for permission, the mandate of section 25-O (3) of the Act of 1947 providing that an order granting or refusing to grant permission applicant/employer within a period of 60 days is to be communicated 30 days from the date on which such application for permission is made failing which the permission applied shall be deemed to have been granted on the expiration of the said period of 60 days, got activated.

12. It is by reference to this provision, the petitioner is pleading that reckoning from the date of submission of application for permission which is 28th of June 2005, the period of 60 days was to expire on 26th of August 2005 up till which date the petitioner was not communicated with the purported decision of the Government in terms of the SROs 237 and 238 of 2005 with respect to refusal to grant permission to the management of the petitioner to close its unit in Bari Brahmana, Jammu and also for effecting 8 OWP No. 586/2005 retrenchment and that the said communication came to take place only when the Conciliation Officer, Jammu came forward with communication no. AIC/J/360-61 dated

29.08.2005 addressed to the petitioner’s Managing Director apprising about the issuance of SROs 237 and 238 of 2005 both 25.08.2005 by which time the period of 60 days had come to expire and the grant of deemed permission and also deemed retrenchment had come to take effect whereby the petitioner had come to effect closure of its said unit and corresponding retrenchment of given number of workmen.

13. In proof of the fact that by the time the petitioner came to be notified for the sake of communication of refusal of the permission by issuance of SROs 237 of 238 of 2005 by the Conciliation Officer, Jammu the petitioner had closed its unit by exploit of deemed permission, it is pleaded that it is evident from the fact that in its communication no. AIC/J/360-61 dated 29.08.2005 the Conciliation Officer, Jammu called upon the petitioner’s managing director to reopen the Unit within a week’s time.

14. To this writ petition, the respondents came forward with the reply/objections stating that the petitioner was having a substantial amount of workforce employed in the said factory with respect to which the management of the petitioner had resorted to lay-off in the month of April 2005 9 OWP No. 586/2005 extending it further though without seeking permission to said effect.

15. In its reply/objections, the respondent no. 1 is meaning to claim that it was on 29.06.2005 that the petitioner had applied for permission under section 25-O of the Act of 1947 after having first closed its unit on 28.06.2005 with a wrong claim projection that only 140 workers would be effected by the closer whereas the actual number of workers to be effected were 323.

16. By attributing the date of submission of the application for permission to be on 29.06.2005, the respondent no. 1 is surely aiming to recues itself from the onus of time frame as contemplated under section 25-O & 25-N of the Act of 1947 requiring communication of grant or non-grant of permission to the employer.

17. A perusal of SRO 237 of 2005 which is meant to be a statement of the government embodying its decision of refusal of permission it is nowhere whispered as to on which date the said application for permission from the petitioner came to be received by the Government while the date of application is acknowledged to be 28th of June

2005. In absence of such recital in its own decision about the date of receipt of application for permission, this Court is to reckon the date of application itself being the date on 10 OWP No. 586/2005 which the application came to be submitted and that being 28th of June 2005 where from the count of 60 days was to take place expiring on 26th of August 2005 upon expiry of which the grant of deemed permission was to come on its force requiring no formal communication inter se the petitioner and the respondent no. 1 to claim and confirm that the deemed permission has come into play.

18. From the reply of the respondent no. 1’s end, this Court is at loss to figure out that in case if the purported reasons, as pleaded in its objection, as forming the purported basis for declining the permission, were there with Government from very early, then why the issuance of SRO 237 of 2005 refusing the permission came to be issued of the fag end of expiry of 60 days and its communication taking place on 29th of August 2005. The timeline given in section 25-O & 25-N is non-negotiable for the simple reason that an industrial concern cannot be made to wait for the decision of the Government to grant or not to grant permission for closure to be taken at its ease and pace.

19. The very fact that even in the case of grant of permission for closure coming to reach an employer after expiry of 60 days from the date of application, the employer is left free to consider deemed permission granted is a pointer to the fact 11 OWP No. 586/2005 that the requirement of meeting the timeline and for the communication of the decision is mandatory.

20. In the present case, it is only through its reply/objections that the respondent no. 1 is attributing date of submission of application for permission to be on 29th of August 2005 so as to cover up the lapse in the matter of communication of SRO 237 of 2005 whereas when the said SRO 237 of 2005 was made available to the petitioner by the Conciliation Officer, Jammu vide his communication no. AIC/J/360-61 dated 29.08.2005, the Conciliation Officer, Jammu did not make a mention of the fact that the application for permission from the petitioner’s end had come to be received by the respondent no. 1 on 29.06.2005.

21. Thus, by issuance of SRO 238 of 2005 the respondent no. 1 intended to put clock back which was not permissible in the facts and circumstances of the case as the petitioner was yet to be informed of issuance of SRO 237 of 2005 issued by the respondent no. 1, thus, issuance of SRO 238 of 2005 is nothing but betrayal of true state of facts and circumstances attending the petitioner in the sense that if the petitioner had already effected the alleged retrenchment of its workers while its application for grant of permission for closer was pending, then the respondent no. 1 ought to have first called upon the petitioner to first undo the alleged 12 OWP No. 586/2005 illegal act of retrenchment of its workmen and then expect an adjudication of its application for permission for closure but that was not thought fit to be done by the respondent no. 1 for the reasons best known to it but which in the eyes of law mean that the factual premise on which Government proceeded to issue SRO 238 of 2005 was misconceived.

22. In the light of the aforesaid, this petition is allowed and thereby declaring the issuance of SROs 237 & 238 of 2005 as illegal and are, consequently, set-aside. (RAHUL BHARTI) JUDGE JAMMU 18.03.2023 Bunty Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No